Karnataka High Court
Narayana Das vs M. Papanna on 24 February, 2023
Bench: S Vishwajith Shetty
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CRL.RP No. 620/ 2014 &
Connected Matters
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRL.R.P.NO.620/2014
C/W
CRL.R.P.NO.621/2014, 622/2014,
675/2014, 676/2014 & 677/2014
IN CRL.R.P.NO.620/2014:
BETWEEN:
NARAYANA DAS
AGED ABOUT 50 YEARS
S/O PILLAPPA
MARKET ROAD
MALUR TOWN - 563 130.
Digitally signed ...PETITIONER
by B A KRISHNA
KUMAR (BY SRI JAGADISH M BALIGA, ADV., FOR
Location: High
Court of SRI CHANDRA MOHAN K., ADV.)
Karnataka
AND:
M. PAPANNA
S/O MUNISHAMY
MAJOR
R/O AGRAHARA
D.T. STREET
MALUR TOWN - 563 130.
...RESPONDENT
(BY SRI A.N. RADHA KRISHA, AMICUS CURIAE)
THIS CRL.RP IS FILED U/S. 397 AND 401 CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT DATED:23.5.09 PASSED IN
C.C.NO.285/2000 BY THE PRL.C.J. (JR.DN.) AND JMFC, MALUR AND
JUDGMENT DATED:18.7.2014 IN CRL.A.NO.16/2009 ON THE FILE OF
THE PRL.S.J., KOLAR.
IN CRL.R.P.NO.621/2014
BETWEEN:
NARAYANA DAS
S/O PILLAPPA
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CRL.RP No. 620/ 2014 &
Connected Matters
AGED 50 YEARS
MARKET ROAD
MALUR TOWN - 563 130.
...PETITIONER
(BY SRI JAGADISH M BALIGA, ADV., FOR
SRI CHANDRA MOHAN K., ADV.)
AND:
SREENIVASAMURTHY
S/O LATE V. KRISHNAIAH SHETTY
AGED MAJOR
CHAIRMAN, MURTHY EDUCATION
TRUST, MARUTHI EXTENSION
MALUR TOWN - 563 130.
...RESPONDENT
(BY SRI A.N. RADHA KRISHNA., AMICUS CURIAE)
THIS CRL.RP IS FILED U/S. 397 AND 401 CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT DATED:23.5.09 PASSED IN
C.C.NO.286/2000 BY THE PRL.C.J. (JR.DN.) AND JMFC, MALUR AND
JUDGMENT DATED:18.7.2014 IN CRL.A.NO.17/2009 ON THE FILE OF
THE PRL.S.J., KOLAR.
IN CRL.R.P. NO. 622/2014:
BETWEEN:
NARAYANA DAS
AGED 50 YEARS
S/O PILLAPPA
MARKET ROAD
MALUR TOWN - 563 130.
...PETITIONER
(BY SRI JAGADISH M BALIGA, ADV., FOR
SRI CHANDRA MOHAN K., ADV.)
AND:
SHYLESH KUMAR
S/O SREENIVASAMURTHY
AGED MAJOR
R/O MARUTHI EXTENSION
MALUR TOWN - 563 130.
...RESPONDENT
(BY SRI A.N. RADHA KRISHNA, AMICUS CURIAE)
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CRL.RP No. 620/ 2014 &
Connected Matters
THIS CRL.R.P. IS FILED U/S. 397 AND 401 CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT DATED:23.5.09 PASSED IN
C.C.NO.417/2000 BY THE PRL.C.J. (JR.DN.) AND JMFC, MALUR AND
JUDGMENT DATED:18.7.2014 IN CRL.A.NO.18/2009 ON THE FILE OF
THE PRL.S.J., KOLAR.
IN CRL.R.P.NO.675/2014:
BETWEEN:
SRI KALAVIDA VISHNU
S/O VEERABHADRACHAR
AGED ABOUT 58 YEARS
NO.286/1, 3RD CROSS
GOWRIPET, KOLAR - 563 101.
...PETITIONER
(BY SRI NANJUNDA GOWDA M.R., ADV.)
AND:
M PAPANNA
S/O MUNISHAMY
AGED ABOUT 75 YEARS
RETIRED LECTURER
R/O AGRAHARA
D.T. STREET, MALUR TOWN
PIN - 563 130.
...RESPONDENT
(BY SRI A.N. RADHA KRISHNA, AMICUS CURIAE)
THIS CRL.RP IS FILED U/S.397 AND 401 CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION PASSED
AGAINST THE PETR. ON 23.5.2009 PASSED BY THE PRL. C.J. (JR.DN)
AND JMFC, MALUR IN C.C.NO.285/2000 AND ALSO SET ASIDE THE
ORDER DATED:18.7.14 PASSED BY THE PRL.S.J., KOLAR IN
CRL.A.NO.12/2009.
IN CRL.R.P.NO., 676/2014:
BETWEEN:
SRI KALAVIDA VISHNU
S/O VEERABHADRACHAR
AGED ABOUT 58 YEARS
-4-
CRL.RP No. 620/ 2014 &
Connected Matters
NO.286/1, 3RD CROSS
GOWRIPET, KOLAR - 563 101.
...PETITIONER
(BY SRI NANJUNDA GOWDA M.R., ADV.)
AND:
V.K. SREENIVASA MURTHY
S/O LATE V. KRISHNAIAH SHETTY
AGED ABOUT 62 YEARS
CHAIRMAN, MURTHY EDUCATION TRUST
MARUTHI EXTENSION, MALUR TOWN
PIN : 563 130.
...RESPONDENT
(BY SRI A.N. RADHA KRISHNA, AMICUS CURIAE)
THIS CRL.RP IS FILED U/S.397 AND 401 CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION PASSED
AGAINST THE PETR. ON 23.5.2009 PASSED BY THE PRL. C.J. (JR.DN)
AND JMFC, MALUR IN C.C.NO.286/2000 AND ALSO SET ASIDE THE
ORDER DATED:18.7.14 PASSED BY THE PRL.S.J., KOLAR IN
CRL.A.NO.13/2009.
IN CRL.R.P.NO.677/2014:
BETWEEN:
SRI KALAVIDA VISHNU
S/O VEERABHADRACHAR
AGED ABOUT 58 YEARS
NO.286/1, 3RD CROSS
GOWRIPET, KOLAR - 563 101.
...PETITIONER
(BY SRI NANJUNDA GOWDA M.R., ADV.,)
AND:
SHYLESH KUMAR
S/O V.K. SREENIVASA MURTHY
AGED 73 YEARS
R/O MARUTHI EXTENSION
MALUR TOWN, KOLAR DISTRICT
PIN - 563 130.
...RESPONDENT
(BY SRI A.N. RADHA KRISHNA, AMICUS CURIAE)
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CRL.RP No. 620/ 2014 &
Connected Matters
THIS CRL.RP IS FILED U/S.397 AND 401 CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION PASSED
AGAINST THE PETR. ON 23.5.2009 PASSED BY THE PRL. C.J. (JR.DN)
AND JMFC, MALUR IN C.C.NO.417/2000 AND ALSO SET ASIDE THE
ORDER DATED:18.7.14 PASSED BY THE PRL.S.J., KOLAR IN
CRL.A.NO.14/2009.
THESE PETITIONS, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Having regard to the similitude of facts and the question
of law involved in these cases and also taking into
consideration that all the cases arise out of a common incident,
these six revision petitions are clubbed, heard together and
disposed of by this common order.
2. Heard the learned Counsel for the petitioners and the
learned Amicus Curiae for the respondents.
3. The respondent/complainants had filed three separate
private complaints against the appellants herein alleging that
the petitioners/accused had committed the offence punishable
under Section 500 IPC. It is their specific case that accused
no.1 (Narayana Das) was the News Reporter and accused no.2
(Kalavida Vishnu) was the Editor and Publisher of Kannada
Weekly Newspaper - Kannada Tilaka which was published from
Malur. It was alleged in their complaint that a news article
CRL.RP No. 620/ 2014 &
Connected Matters
which was published in the aforesaid weekly newspaper dated
12.06.2000 as per Ex.P-1 contained the defamatory article,
wherein it was stated that the complainants were indulged in
land grabbing and in the institutions run by the complainants,
admission was not given to students belonging to Scheduled
Caste and Scheduled Tribe and the article also narrated about
the maladministration of the educational institutions by the
complainants.
4. After receipt of the complaints, the jurisdictional
Magistrate had recorded the sworn statement of the respective
complainants and after taking cognizance of the alleged offence
has proceeded further and three separate cases were
registered against the accused in C.C.Nos.285/2000, 286/2000
& 287/2000. Upon receipt of summons in the said proceedings,
accused persons had appeared before the learned Magistrate
and they did not plead guilty. The complainants in order to
establish their case had examined themselves as PW-1 and also
examined another witness as PW-2 and got marked the
newspaper in which the alleged defamatory article was
published as Ex.P-1. Accused no.2 had led the defence
evidence and also got marked certain documents in support of
CRL.RP No. 620/ 2014 &
Connected Matters
his defence. The Trial Court, thereafter, heard the arguments
on both sides and by three separate judgment and order dated
23.05.2009 convicted the accused for the alleged offence.
Being aggrieved by the said judgment and order of conviction
passed in the aforesaid three cases, accused no.2 had filed
Crl.A.Nos.12 to 14 of 2009 before the Court of Principal
Sessions Judge, Kolar, while accused no1. had filed
Crl.A.Nos.16 to 18 of 2009. The learned Principal Sessions
Judge, by judgment dated 18.07.2014 had dismissed the
aforesaid six criminal appeals filed by the accused and it is in
this factual background, the accused persons are before this
Court in these revision petitions.
5. Learned Counsel appearing for the petitioners submits
that the Trial Court as well as the Appellate Court had erred in
convicting the accused for the alleged offence. They submit
that the Trial Court had recorded a common plea and a
common statement under Section 313 Cr.PC which is not
permissible in law. They submit that because of the defective
trial, the order of conviction passed by the courts below cannot
be sustained. Learned Counsel for accused no.1 submits that
there is absolutely no material to show that accused no.1 was
CRL.RP No. 620/ 2014 &
Connected Matters
the reporter of the defamatory article which was published in
the newspaper at Ex.P-1. He submits that the courts below only
on the basis of the statement under Section 313 Cr.PC have
recorded a finding that accused no.1 was the reporter of the
said news article. Learned Counsel for the petitioners also
submitted that since the complaint is of the year 2000, this is
not a fit case for remand to hold a denova trial as the
petitioners/accused have already suffered for the last nearly 23
years, and accordingly, they pray to allow the revision
petitions.
6. Per contra, learned Amicus Curiae appearing on behalf
of the respondent/complainants does not dispute that recording
of common plea and common statement under Section 313
Cr.PC is bad in law and the same will prejudice the case of the
accused persons. However, he submits that the petitioners
have not been able to point out the prejudice that is caused to
them because of the defective trial, and he accordingly, prays
to dismiss the revision petitions.
7. I have carefully considered the arguments addressed
on both sides and also perused the material available on
record.
CRL.RP No. 620/ 2014 &
Connected Matters
8. The petitioner-accused were tried before the Trial
Court for the offence under Section 500 IPC. Undisputedly, the
cases registered against the petitioners before the Trial Court
are summons case. After service of summons in the said cases,
petitioners had appeared before the Court and the petitioners
did not plead guilty. Section 228 of Cr.PC provides for recording
the plea in cases which are tried by the Sessions Court,
whereas Section 240 of Cr.PC provides for recording plea by
the Court in warrant cases. Section 251 of Cr.PC provides for
recording the plea in summons case.
9. From the reading of the aforesaid provisions of law, it
is clear that under Sections 228 & 240 Cr.PC, the Court is
required to frame the charge and read over it and explain the
same to the accused person and accused shall be asked
whether he pleads guilty of the offence charged or claims to be
tried. However, in respect of summons case, the framing of
charge is not necessary and in summons case, when the
accused appears or is brought before the Court, the accusation
against him is required to be put forward to him by the
Magistrate and the Magistrate is required to ask whether the
accused pleads guilty or has any defence to make.
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CRL.RP No. 620/ 2014 &
Connected Matters
10. In the present case, the Magistrate has recorded
common plea of both the accused persons. The accused
persons in these cases do not stand on the same footing.
Accused no.1 is allegedly the reporter of the defamatory article,
while accused no.2 is the Editor and Publisher of the newspaper
at Ex.P-1, in which the defamatory article was published. In so
far as accused no.2 is concerned, there is a presumption
against him under Section 7 of the Press and Registration of
Books Act, 1867 (for short, 'the Act'), which is not available
against accused no.1. The burden is completely on the
complainant to prove his case against accused no.1, whereas in
case of accused no.2 it is not so in view of Section 7 of the Act.
The accusation as against accused nos.1 & 2 in these cases,
therefore, cannot be common, and therefore, the learned
Magistrate in any event, could not have recorded a common
plea. Even otherwise, while recording the plea, the learned
Magistrate is required to record the same individually and
common recording of the plea is always likely to prejudice the
defence of the accused and the trial is likely to be rendered
defective.
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CRL.RP No. 620/ 2014 &
Connected Matters
11. It is also seen that the learned Magistrate has
recorded the common statement of both accused under Section
313 Cr.PC. Even this procedure followed by the learned
Magistrate is bad in law. Section 313 of Cr.PC provides for
examining the accused by the court and this can be done at
any stage of the case. The principles of following natural justice
is embedded in this provision of law and this is an important
stage of trial, wherein an opportunity is being given to the
accused to explain the circumstances appearing in the evidence
against him. Therefore, common statement of the accused
persons under Section 313 Cr.PC cannot be recorded. In a case
where there are many accused, each of the accused persons
may have a separate explanation to offer, and therefore, in the
event of recording a common statement under Section 313
Cr.PC, the case of the accused is likely to be prejudiced.
12. In the case of VAIJINATH VS STATE OF KARNATAKA
- ILR 1993 KAR 543, the Division Bench of this Court has held
that recording of joint statement of the accused persons under
Section 313 Cr.PC is bad in law and the same amounts to non-
compliance of the mandatory requirement of Section 313 Cr.PC
which would vitiate the order passed by the Trial Court.
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CRL.RP No. 620/ 2014 &
Connected Matters
13. Similarly, in the case of VENKATESHAPPA VS STATE
OF KARNATAKA (Crl.A.No.1424/1998 disposed of on
11.07.2001), the Division Bench of this Court has reiterated the
law laid down in Vaijinath's case supra and has held that
recording of joint statement under Section 313 Cr.PC is not
permissible.
14. In the case of EMPEROR VS. BALKRISHNA ANANT
HIRLEKAR AND OTHERS - ILR (1931) 55 BOM 356, the
Bombay High Court held that if there are several accused, the
Magistrate must examine each accused separately; if he
records the statements of all the accused collectively, the trial
is vitiated and the conviction must be set aside.
15. In the case of STATE OF KARNATAKA VS
SHARANAHALLI REVANNA & OTEHRS - 1997(2) KantLJ 374,
the Division Bench of this Court has observed as under:
".....Though we do accept the position that the
provisions of Section 313 Cr. P.C. must be strictly
complied with and that if the Trial Court breaches
those provisions and there is even the possibility of
prejudice or injustice occurring to the accused that it
would vitiate the verdict, we do not agree that in
each and every case a de novo trial is the only
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CRL.RP No. 620/ 2014 &
Connected Matters
solution. In our considered view if the error has taken
place at the end of the trial it is unnecessary for the
Trial Court to go through the entire exercise of re-
recording the evidence and the appeal Court could as
well direct the correct recording of the Section 313
statement and a re-consideration of the case from
that stage onwards.
3. Mr. Chandrasekharaiah at this stage
submitted that there is one pre-dominant
consideration which this Court must take into account
viz., the question as to whether any useful purpose
would be served through a remand either total or
partial at this late stage. He has demonstrated to us
that if there is a total remand, that the Court will
have to consider whether at all on the facts of the
present case which do not represent a very serious
state of affairs, it is desirable to burden the Trial
Court with the exercise of re-hearing the entire
matter. We are conscious of the fact that the incident
is six years old and that this being a criminal trial if
there is any divergence in the evidence between the
last occasion and the present one and more
importantly if due to the lapse of time as is most
likely, the witnessness are unable to fully and
correctly recall the incident, that the entire operation
would be an exercise in futility.
4. Having regard to the principles that govern
the aspect of remand particularly in criminal cases,
we are inclined to uphold the submission canvassed
by Mr. Chandrasekhariah though the learned
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CRL.RP No. 620/ 2014 &
Connected Matters
Additional SPP has submitted that they should be left
to the Trial Court insofar as if the evidence is either
forthcoming or is unsatisfactory that the Trial Court
will take an appropriate decision, out this Court
should not anticipate such a possibility. Where the
offences are extremely serious and where it is
necessary that a miscarriage of justice should not
result due to some default, it is most essential that
merely because of technical or procedural defects,
the accused should not get the benefit and that
justice should correctly be done. Where, if the
incidents are not of much seriousness and where a
long period of time has elapsed and it is also on
record that the accused have one faced the trial and
have obtained a verdict in their favour, in our
considered view it would not be appropriate
particularly after the lapse of 6 to 7 years to burden
the Trial Court with a re-trial. It does not require very
much of speculation to anticipate as to what the
result of the entire operation would be, insofar as it
would be almost impossible to expect that sufficiently
clear and cogent evidence could come forward at this
late stage. Even if we were to direct that the
statement under Section 313 were to be correctly
recorded and the matter were to be re-decided, on
the stage of the present record we do not visualise
any other verdict.
5. Having regard to the totality of these
considerations, we are of the view that the remand is
contra-indicated in this case and that it would be
futile. Under these circumstances even though we
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CRL.RP No. 620/ 2014 &
Connected Matters
have upheld the objections canvassed virtually on
both sides, we hold that no useful purpose would be
served by prolonging this litigation. In this view of
the matter, we are not inclined to disturb the order of
acquittal recorded in favour of the respondents
accused. The appeal fails and stands disposed of."
16. In the aforesaid judgment, the Division Bench has
held that compliance of Section 313 Cr.PC is mandatory and
common statement of the accused cannot be recorded and
refused to remand the matter to the Trial Court on the ground
that the accused had already faced the trial and it may not be
appropriate to burden the Trial Court to hold re-trial after a
lapse of 6 to 7 years.
17. In the present case, the complaints were filed in the
year 2000 and already 23 years have lapsed by now. The
advocate for the respondent-complainants in all these revision
petitions was throughout absent, and therefore, this Court had
no other option but to appoint learned Counsel Sri A.N.Radha
Krishna as Amicus Curiae for the purpose of assisting the Court.
This would go to show that the complainants themselves are
not interested in prosecuting the case. In addition to the same,
the accused have been held guilty and convicted by the Trial
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CRL.RP No. 620/ 2014 &
Connected Matters
Court principally on the basis of the statement under Section
313 Cr.PC and the Trial Court observed that accused no.1 has
admitted in his Section 313 statement that he was the author
of the defamatory article. A perusal of the statement under
Section 313 Cr.PC recorded in these cases do not disclose that
accused no.1 admitted that he was the author of the
defamatory article, and on the other hand, he has only said
that the contents of the article are true and correct.
18. The impugned judgment and order of conviction and
sentence passed by the courts below are liable to be set aside
for non-compliance of the requirement of Section 251 Cr.PC
and Section 313 Cr.PC as the entire trial is rendered defective
having regard to non-compliance of the aforesaid mandatory
provisions of law. Though in normal circumstances, this Court
would have set aside the impugned judgment and order of
conviction and sentence passed by the courts below and
remanded the matter to the Trial Court to proceed further in
accordance with law, having regard to the lapse of time, nature
of evidence available on record and also considering the fact
that the complainants themselves are not interested in
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Connected Matters
prosecuting these cases, I am of the considered view that this
is not a fit case for remand. Accordingly, the following order:
19. The revision petitions are allowed. The judgment and
order of conviction and sentence dated 23.05.2009 passed by
the Trial Court in C.C.Nos.285/2000, 286/2000 & 287/2000 and
the judgment and order dated 18.07.2014 passed by the
Appellate Court in Crl.A.Nos.12 to 14, 16 to 18 of 2009 are set
aside. The petitioners are acquitted of the offence under
Section 500 IPC.
20. The services of learned Counsel Sri A.N.Radha
Krishna as Amicus Curiae is appreciated and his fee is fixed at
Rs.15,000/-.
SD/-
JUDGE
KK
